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Month: September 2025

BY: root
12 September, 2025 Comments (0)

Statutory Demands: A Guide

A Guide to Statutory Demands for both Creditors & Debtors in Australia A statutory demand is a formal, written notice issued by a creditor to a debtor (which must be a corporation), requiring immediate payment of an outstanding debt. Failure to comply within 21 days may result in the company being presumed insolvent open to being subject to a winding up application in the Federal Court or Supreme Court. A statutory demand is a powerful legal instrument under the Corporations Act 2001 (Cth) and is often the first step in corporate debt enforcement and collection. This article explains the process and implications of statutory demands, both from the perspective of a creditor seeking to recover a debt, and a company that has been served with one. What is a statutory demand? Under section 459E of the Corporations Act 2001, a statutory demand is a formal demand issued by a creditor which compels the debtor company, which owes a debt (or debts) totalling more than $4,000.00 to, within the statutory period: pay the debt or debts, in full; enter into an arrangement acceptable to the creditor; or apply to the court to have the demand set aside. If the debtor company fails to take appropriate steps within the statutory period, the creditor can apply to wind the company up in insolvency pursuant to section 459Q of the Corporations Act 2001. Purpose of a Statutory Demand A statutory demand serves two primary functions: enforcement: It places legal pressure on the debtor to resolve or pay the debt. insolvency trigger: Non-compliance establishes a legal presumption of insolvency, forming the basis for a liquidation application. Statutory demands are not intended to resolve disputes. They are only appropriate where the debt is undisputed, due, and payable. Nevertheless, they remain an effective means of compelling payment. Requirements of a valid statutory demand To be effective, a statutory demand must strictly comply with the formal requirements of the Corporations Act 2001. Non-compliance can render the demand invalid and lead to adverse cost consequences for the creditor. Key statutory requirements (under s459E(2)): A statutory demand must: be in writing; be in the prescribed form; specify the debt or total amount owing (if more than one debt); require the debtor company to pay, secure, or compound the debt to the creditor’s reasonable satisfaction; be signed by or on behalf of the creditor; and if the debt (or a part of the debt) is not a judgment debt, be accompanied by an affidavit verifying that the debt is due and payable. Errors in the form, or failure to provide a supporting affidavit, can invalidate the demand. Supporting Affidavit For debts that are not based on a court judgment, a statutory demand must be accompanied by a properly sworn affidavit confirming: the creditor’s belief that the debt is due and payable; the basis on which the debt is claimed; and must comply with the rules of court. Serving the statutory demand Service of the statutory demand must be executed in accordance with the Corporations Act 2001. Correct service is essential to enforceability. Common methods include: delivering the demand to the company’s registered office; or leaving it with a director or authorised officer. Service by post is permitted if addressed to the registered office. Courts regularly deal with challenges to statutory demands based on improper service, and even minor defects in service can be fatal to enforcement. Consequences of non-compliance If the debtor company fails to respond within 21 days of effective service, the following consequences may arise: a presumption of insolvency is triggered under section 459C(2)(a); the creditor may file an application for the company to be wound up in insolvency; the burden shifts to the debtor to rebut the presumption in court. It is not necessary to prove actual insolvency at this stage. The failure to comply with the statutory demand is, on its own, sufficient evidence of insolvency for the purpose of a winding up application. Grounds for setting aside a statutory demand If a company wishes to challenge a statutory demand, it must apply to the court within 21 days of service to have the demand set aside. The application must be supported by an affidavit outlining the reasons. Under section 459H, the court may set aside a statutory demand if: 1.     There is a genuine dispute about the existence or amount of the debt The dispute must be bona fide and based on real grounds, not simply a denial of the debt. A genuine dispute does not require the company to prove it will succeed, only that there is a serious question to be tried. 2.     The company has an offsetting claim An offsetting claim arises where the debtor company has a counterclaim, set-off or cross-demand against the creditor, whether liquidated or unliquidated, and whether or not the claim arises from the same transaction. 3.     There is a defect in the demand causing substantial injustice This may include errors in form, amounts, or inconsistent or unclear descriptions of the debt. 4.     There is some other reason the demand should be set aside Courts retain discretion to set aside a demand in circumstances of abuse of process, unconscionable conduct, or other equitable grounds. 5.     The “Substantiated Amount” If the court finds that part of the debt is in dispute or subject to an offsetting claim, it may assess what is called the substantiated amount – the undisputed portion of the debt. If the substantiated amount is below the statutory minimum ($4,000), the demand must be set aside. Timeframes are strict Strict compliance with time limits is essential. The application to set aside the demand must: be filed in the court within 21 days of service; and be served on the creditor promptly. Late applications will not be accepted, and the statutory presumption of insolvency will remain in place. Strategic considerations for creditors Creditors should carefully assess the circumstances before issuing a statutory demand. Key considerations include: whether the debt is genuinely undisputed

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BY: root
12 September, 2025 Comments (0)

Can I refuse to be an Executor of a Will?

Can I refuse to be an executor under a will? Being named as the executor of a loved one’s Will can sometimes come as a surprise. For many people, the news arrives during an already difficult time, following the death of someone close to them. While some view the role of executor as an honour, others may see it as an overwhelming burden. So, what happens if you do not want to act as executor? Do you have a choice? What are your legal options? In this article, we explain what it means to be named an executor of a Will, when and how you can refuse the role, and the legal consequences of your decision. What Is an executor of a will? An executor is the person appointed in a Will to carry out the deceased’s final wishes and administer their estate. This is a role of trust and responsibility. Executors are responsible for tasks such as: locating the original Will; arranging the funeral and burial or cremation; applying for a grant of probate (formal approval of the Will by the relevant Supreme Court in your State or Territory); identifying and securing the deceased’s assets; paying debts and taxes owed by the estate; distributing the estate to the beneficiaries according to the terms of the Will. It is not unusual for people to nominate family members, close friends, or professional advisers as executors. However, being named does not mean you are compelled to accept the role. Do I have to accept being an executor? The simple answer is no. A person named as executor has the freedom to accept or decline the role, unless they have already taken steps that amount to “intermeddling” in the estate (explained below). Declining the role is referred to as renouncing probate. This means you are formally refusing the responsibility of administering the estate. Importantly, even if you told the deceased during their lifetime that you would act as executor, you are not legally bound to follow through if you change your mind after their death. Why might someone refuse to be an executor? There are many reasons why a named executor may not want to accept the appointment, including: emotional reasons – the grief of losing a loved one can make the thought of handling their affairs too distressing. personal circumstances – you may have too many commitments, health concerns, or live overseas, making the role impractical. financial considerations – if you are not receiving any benefit from the estate, you may not wish to shoulder the burden of administration. family dynamics – disputes or tension among beneficiaries may make the task of executor particularly challenging. It may simply be better to allow another person to act as executor, reducing the likelihood of disputes. Whatever the reason, the law recognises that not everyone is in a position to take on this responsibility. How do I refuse to be an executor? If you decide not to act, you must formally renounce probate. This involves: signing a renunciation of probate document, which must be in the proper form; filing the renunciation with the Supreme Court of your State or Territory; having the renunciation accepted by the Court. The renunciation does not take effect until the Court has accepted it and must usually be accompanied by an affidavit of verification, to be completed by a lawyer. It is strongly recommended that you obtain legal advice before renouncing. A solicitor can explain the process, prepare the necessary affidavit, and ensure your documents meet the Court’s requirements. What Is intermeddling? You can only refuse to act as executor if you have not already “intermeddled” in the estate. Intermeddling refers to conduct that shows you have accepted the role of executor, such as dealing with the estate’s property or finances. Examples of intermeddling may include: closing or accessing the deceased’s bank accounts; selling, transferring, or managing estate assets; paying debts or liabilities of the estate; representing yourself to others as the executor. Once you have intermeddled, you usually cannot later renounce your appointment. Acts that usually do not amount to intermeddling include: arranging and paying for the funeral (including from estate funds); securing the deceased’s property from damage or theft; caring for pets or livestock; advertising or applying for a grant of probate without taking further steps. The distinction can be subtle. If you are unsure whether something you have done amounts to intermeddling, it is important to seek legal advice promptly. What happens If I do nothing? Some executors neither renounce their role nor take any steps to administer the estate. This can create significant delays and stress for beneficiaries. If this happens, any person with an interest in the estate may apply to the Court under section 15 of the Administration and Probate Act 1958 (Vic). The Court can order you to: bring the Will before the Court; explain why you are not proving the Will or renouncing; allow the Court to appoint someone else to administer the estate. If such an application is necessary, you may be ordered to pay the legal costs of the proceedings. Consequences of renouncing While renouncing can relieve you of responsibility, it may also have consequences that you should consider carefully. These may include: loss of entitlements under the Will – in some cases, your entitlement as a beneficiary may be conditional on you acting as executor, even if this is not stated explicitly. loss of executor’s commission – executors can apply for commission as compensation for the time and effort involved in administering the estate. By renouncing, you give up this potential entitlement. Every situation is different. The impact of renouncing depends on the terms of the Will and the overall structure of the estate. Should I get legal advice before renouncing? Absolutely. Deciding whether to accept or refuse an executor appointment can have long-term consequences for you and the estate. A solicitor can: explain your rights and obligations as executor; advise whether your actions so far amount to

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BY: root
12 September, 2025 Comments (0)

General protection claims

General Protections Claims under the Fair Work Act 2009 (Cth): What You Need to Know The Fair Work Act 2009 (Cth) (the FW Act) provides employees across Australia with a broad range of workplace protections. Among these, the General Protections provisions are some of the most powerful. They protect employees and prospective employees from adverse action, coercion, misrepresentation, and undue influence or pressure. Unlike unfair dismissal claims, General Protections matters do not require minimum employment periods or salary thresholds. As such, they are a valuable legal avenue for workers who believe their rights have been breached—especially where discrimination, retaliation, or coercion is alleged. This article explains what General Protections are, what types of claims may be brought, the legal framework for adverse action, and the process for resolving disputes. It focuses on the jurisdiction of the Fair Work Commission and Federal Courts, and provides guidance on remedies and enforcement. What are general protections? The General Protections provisions, found in Part 3-1 of the Fair Work Act, aim to: Protect workplace rights; Ensure freedom of association; Provide protection against workplace discrimination; Promote fairness in the workplace. These protections apply not only to employees, but also to prospective employees, contractors, industrial associations, and union members. The provisions create obligations that employers must not breach, regardless of the size or nature of the business. Key Protections Under the Act The General Protections regime encompasses several distinct legal protections. 1. Workplace Rights A person has a workplace right if they are: entitled to a benefit or role under a workplace law, award, agreement or order; able to initiate or participate in a process or proceeding under a workplace law; able to make a complaint or inquiry in relation to their employment. It is unlawful for an employer to take adverse action against a person because they have (or exercise or propose to exercise) a workplace right. 2. Freedom of Association This refers to the right of individuals to: choose whether or not to join a union; be represented in the workplace; participate in lawful industrial activities. Employers must not take adverse action because an employee participates in (or refuses to participate in) union-related activity. 3. Protection from Discrimination General Protections prohibit adverse action based on protected attributes, including: race; sex; age; disability; religion; political opinion; national origin; family or carer responsibilities. Discriminatory treatment on these grounds may give rise to both a General Protections claim and a claim under anti-discrimination legislation. What Is Adverse Action? Understanding the meaning of adverse action is crucial. Under section 342 of the FW Act, adverse action includes: dismissing an employee; altering the position of the employee to their prejudice; injuring the employee in their employment; discriminating between employees; Critically, it is not necessary to prove that the adverse action was the sole reason for the conduct. It need only be one of the reasons, even if it is not the dominant or primary one. This threshold, coupled with a reverse onus of proof, makes general protections claims more favourable to applicants compared to other employment claims. Reverse onus of proof One of the most significant features of the General Protections regime is the reverse onus under section 361 of the Act. Once an applicant establishes that adverse action occurred and alleges a prohibited reason, it is presumed that the adverse action was taken for that reason – unless the employer proves otherwise. The employer must lead clear and cogent evidence to rebut the presumption. If they fail to do so, the court will likely find that the prohibited reason was the sole, or a, motivating factor, and therefore find in favour of the applicant. Examples of General Protections Breaches Termination after safety complaint An employee who raises concerns about workplace safety and is later dismissed may have a claim for adverse action if the dismissal is connected to the complaint. Retaliation for taking personal leave An employee who exercises their entitlement to personal leave and is demoted, terminated or disadvantaged may pursue a general protections claim. Refusal to hire due to union affiliation A prospective employee denied employment because of their union membership may be able to establish unlawful adverse action. How to make a general protections claim The process for making a general protections claim depends on whether or not the alleged adverse action involves dismissal. 1. Claims involving dismissal Where adverse action results in termination of employment, the applicant must: lodge an applicant with the Fair Work Commission; do so within 21 days of the dismissal taking effect. The Commission will then convene a conciliation conference, usually conducted by telephone, to attempt to resolve the matter. If no resolution is reached, the applicant may request a certificate allowing the matter to proceed to the Federal Court or Federal Circuit and Family Court of Australia. 2. Claims not involving dismissal For adverse action claims that do not involve dismissal, the applicant may apply directly to the Federal Court or Federal Circuit and Family Court, without the need to first approach the Commission. However, legal advice is strongly recommended in such cases, as court proceedings can be complex and costly. Remedies available Successful general protections claims can result in a broad range of remedies. These include: reinstatement (in cases of dismissal); compensation for economic loss, hurt, or humiliation; civil penalties against the employer and any individuals involved in the contravention; injunctions to prevent ongoing or future contraventions. There is no cap on compensation, unlike unfair dismissal claims, where compensation is generally capped at 26 weeks’ pay. This makes General Protections claims particularly powerful where there is evidence of financial harm or emotional distress. Case Law: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 This High Court decision remains one of the leading authorities on general protections. Mr Barclay, a union representative, sent an email raising concerns about workplace conduct. He was suspended and later dismissed. The employer argued the dismissal was due to misconduct, not his union involvement. The High

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BY: root
12 September, 2025 Comments (0)

A Victorian Guide to Residential Tenancy Law & Disputes

A Guide to Residential Tenancy Law & Disputes in Victoria In Victoria, residential tenancy disputes are common occurrences between landlords and tenants. Whether it involves unpaid rent, property damage, bond disputes or lease termination issues, these conflicts often require resolution through the Victorian Civil and Administrative Tribunal (VCAT). Understanding the types of disputes that arise, and how VCAT manages them, is essential for both property owners and tenants. This article explains the nature of residential tenancy disputes in Victoria, outlines common types of conflicts, and sets out the procedure for resolving such disputes through VCAT. What Is a residential tenancy dispute? A residential tenancy dispute is a legal disagreement between a landlord (rental provider) and a tenant (renter) arising from a residential tenancy agreement. These disputes may involve breaches of the rental agreement, issues of maintenance and repairs, disagreements over rent or bond, or concerns about access, privacy, and termination. In Victoria, such disputes fall under the Residential Tenancies Act 1997 (Vic), which outlines the rights and responsibilities of parties to a residential lease. When informal negotiations fail, parties may escalate the matter to VCAT – the body responsible for hearing and resolving tenancy disputes in a timely, low-cost and accessible manner. Common Types of Residential Tenancy Disputes Although rental disputes vary, certain categories arise frequently across Victoria. Below are the most common types of disputes heard at VCAT. 1.     Bond Disputes Bond disputes are among the most frequent issues. Typically, a dispute arises when: The landlord claims part or all of the bond for damages, cleaning or unpaid rent The tenant contests the deduction, asserting the property was left in a reasonable condition, or that rent has been paid up to date, etc. It is important to note that bonds must be lodged with the Residential Tenancies Bond Authority (RTBA). After the tenancy ends, either party may apply to have the bond released. If there is no agreement, the dispute may proceed to VCAT. 2.     Rent Arrears Disputes concerning unpaid rent often lead to notices to vacate and eviction proceedings. A landlord may serve a Notice to Vacate if the tenant falls behind on rent for 14 days or more. If the rent remains unpaid, the landlord can apply to VCAT for possession of the property. However, if tenants pay within the notice period, no application can be made (until a certain number of notices have been issued). Further, the tenant can apply for a payment plan or negotiate alternative arrangements. VCAT must balance the rights of both parties and will usually consider hardship before ordering possession. 3.     Property Damage Allegations of damage beyond reasonable wear and tear frequently lead to conflict. Landlords may claim compensation for: Stains, broken fittings, or structural damage Failure to maintain cleanliness or sanitation On the other hand, tenants often argue that the damage was pre-existing or resulted from fair wear and tear. Supporting evidence, such as entry and exit condition reports, becomes critical in such disputes. 4.     Repairs and Maintenance Tenants have a legal right to live in a property that is in good repair and reasonably clean. Landlords must address urgent repairs without delay and non-urgent repairs within a reasonable timeframe. Disputes arise when: Landlords fail to undertake repairs Tenants carry out unauthorised repairs and seek reimbursement There is disagreement about whether a repair is urgent or non-urgent VCAT may order repairs, reimbursement or compensation depending on the circumstances. 5.     Entry and Privacy Under Victorian law, landlords must provide proper notice before entering the premises. Tenants may dispute: Unlawful or excessive entry Entry without notice Lack of respect for quiet enjoyment Landlords may enter only under specific conditions, such as inspections, repairs, or emergencies, and must provide at least 24 hours’ written notice in most cases. 6.     Lease Termination and Evictions Lease terminations often generate disputes, particularly when one party alleges breach of the agreement. These issues commonly include: Early termination by tenants Non-payment of rent Landlord seeking possession during a fixed-term lease VCAT hears applications regarding the validity of notices to vacate, whether reasonable grounds exist for termination, and whether hardship would result from eviction. 7. Rent Increases Disputes may occur when: Tenants believe a rent increase is excessive or unjustified Proper notice was not given (minimum 60 days) Increases occur more frequently than permitted (once every 12 months for periodic agreements) VCAT can assess whether the new rent is excessive based on market comparisons. Attempting Resolution Before VCAT Before applying to VCAT, parties are encouraged to resolve disputes through informal negotiation. In many cases, disputes can be settled by: Communicating in writing Using the services of Consumer Affairs Victoria Engaging in voluntary conciliation Consumer Affairs Victoria offers dispute resolution assistance and may help parties reach agreement without needing a tribunal hearing. While not mandatory in all cases, attempting resolution before escalating the matter can save time, stress and costs. The VCAT Process for Tenancy Disputes When disputes cannot be resolved informally, parties may apply to VCAT’s Residential Tenancies List. The process is designed to be accessible, even without legal representation. 1. Filing an Application The first step is to complete and lodge a VCAT application form, which can be done online or in person. The application must: Clearly state the nature of the dispute Identify the orders sought Include relevant supporting documents (e.g. lease agreement, notices, condition reports) There is usually a filing fee, although fee relief may be available for eligible applicants. 2. Notifying the Other Party VCAT requires that the other party (the respondent) be properly notified of the application. In most cases, this involves serving the application via post or email. Proof of service must be provided. The respondent may file a response or attend the hearing to present their side. Failure to attend may result in orders being made in their absence. 3. Attending the Hearing VCAT hearings are conducted in an informal setting. The parties are usually not required to have legal representation, although they may engage a

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